When Lake Erie algae blooms worsened to a crisis in the 1960s, Canada and the United States shared the problem—but no mechanism to combat it jointly.
Out of that gap came the binationalGreat Lakes Water Quality Agreement. Signed by Canadian Prime Minister Pierre Trudeau and U.S. President Richard Richard Nixon in Ottawa on April 15, 1972, the pact embraced the reality that Great Lakes water flows across the international boundary and that only through joint effort can the lakes be restored.
Has it worked?
The answer: yes and no. Yes, the Great Lakes are better off than they would be without the Agreement. The two countries have coordinated efforts to clean up the lakes for decades, keeping the commitment they made 50 years ago. That commitment is to “restore and maintain the chemical, physical, and biological integrity of the Waters of the Great Lakes.” These efforts have reduced, but not eliminated, both conventional and chemical forms of pollution and broadened the perspectives of both governments and the public to grasp the importance of regarding the Lakes as an ecosystem, instead of a jumble of unrelated pieces.
But the Agreement’s 1972 goals are unfulfilled. In particular, the Great Lakes are not “free from nutrients entering the waters as a result of human activity in concentrations that create nuisance growths of aquatic weeds and algae.” After early successes in reducing the phosphorus pollution that spurred algae outbreaks, the two nations have witnesseda rebound in both nuisance and harmful algae in Lake Erie since the early 2000s. A toxic bloom forced Toledo, Ohio, officials to warn residents not to drink city water for two days in the summer of 2014. Algae blooms also occur in Saginaw Bay and pockets of Lake Michigan and Lake Ontario. Lately,blooms have appeared in Lake Superior, the coldest and cleanest of the Great Lakes, for reasons not yet clear.
Has it worked? The answer: yes and no. Yes, the Great Lakes are better off than they would be without the Agreement. But the Agreement’s 1972 goals are unfulfilled.
While the scientific explanation for the Lake Erie algae trend is complicated, the social and political explanation is simple. The primary culprit in the 1950s and 1960s, when a University of Toronto researcher said the lake was dying, was phosphorus soaps and detergents, discharged primarily from sewage plants after household use, and thus easy to attack. Today, runoff of farm fertilizer and animal waste is the primary cause, and there is little political appetite for enforcing strict phosphorus limits on agriculture. Similarly, politicians on both sides of the border are generally unwilling to spend political capital challenging industry to reduce the use and introduction of toxic chemicals that often contaminate sportfish. Pollution also limits other human uses in areas of the Great Lakes, including swimming.
This is just one of several problems undermining the Great Lakes Water Quality Agreement, which has been significantly altered three times, in1978,1987 and2012.
Report cards issued by the two governments and by the International Joint Commission (IJC), which the Agreement charges with evaluating progress, are mixed. The governments’2019 State of the Great Lakes report characterizes the lakes as “fair and unchanging. While progress to restore and protect the Great Lakes has occurred, including the reduction of toxic chemicals, the indicator assessments demonstrate that there are still significant challenges, including the impacts of nutrients and invasive species.”
The biggest threat to the Great Lakes is undoubtedly climate change. It will alter the lakes in many ways, some of them not foreseeable. Warming groundwater, changes in the aquatic food web, and increasing algae blooms are likely among them.
There are other major challenges to the health of the Great Lakes: habitat loss, pollution of groundwater that feeds the lakes, and climate change. Meanwhile, mistakes of the past continue to plague the lakes. After more than three decades of cleanup effort, 34 of an original43 Areas of Concern (AOCs) remain (26 U.S.,12 Canadian and five shared). AOCs are bays, harbors, and rivers that are victims of chemical and conventional pollution requiring billions of taxpayer dollars to clean up. The toxic materials, such as PCBs, dioxins, and mercury are persistent and have contaminated millions of cubic yards of underwater sediments. An additional$1 billion for the Great Lakes appropriated by Congress this year will go to cleanup activities at several AOCs.
There is growing awareness that a binational U.S.-Canada Great Lakes Water Quality Agreement excludes governments that should have an equal seat at the table–tribes, First Nations, and Metis, whose sovereignty, wisdom, and scientific knowledge are essential to the health of the Great Lakes. Yet it was only in the 2012 version of the Agreement that indigenous membership was specified on the Great Lakes Water Quality Board, and only in 2019 that the first indigenous member of the IJC,Henry Lickers, was appointed by the Canadian government.
The biggest threat to the Great Lakes is undoubtedly climate change. It will alter the lakes in many ways, some of them not foreseeable. Warming groundwater, changes in the aquatic food web, and increasing algae blooms are likely among them. The 2012 version of the Great Lakes Water Quality Agreement containsan annex devoted to climate change, but focuses solely on assessment and planning.
In signing the Agreement in Ottawa in April 1972,President Nixon said, “This agreement represents an important beginning, one which has been made possible by the cooperation of our two national governments and of State and Provincial governments as well. And now we must all follow through on the beginning.”
Today, we are still closer to the beginning than the end of Great Lakes restoration, Great Lakes Water Quality Agreement notwithstanding.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
The citizens of Toledo, Ohio, desperate to end the continuing plague of toxic algal blooms covering the western one-third of Lake Erie, in February 2019 passed by referendum a municipal ordinance that enacted the “Lake Erie Bill of Rights.” The Bill of Rights holds that “Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve.” The State of Ohio, joined at the hip by big agricultural corporations, challenged the ordinance in the courts and, for the moment, put an end to this new municipal law that sought to create rights of nature.
The Lake Erie Bill of Rights is part of a larger stage: The rapidly increasing worldwide movement to recognize nature as a being or “person,” has become a rallying cry to address the growing irrefutable evidence of the connection between systemic threats to water and the environment, and human and cultural survival.
Actor and producer Mark Ruffalo’s compelling documentary on the rights of nature movement, Invisible Hand, illustrates the gravity of the systemic threats to earth and water on which health and all life depends.
Like the movement to shift our perception that in the 1970s resulted in the rights of citizens to bring lawsuits to protect the air, water, and environment, Ruffalo’s film dramatizes the declaration of the rights of nature itself, concluding that nature, its rivers, lakes, and biotic systems must be protected by government as living beings. Indeed, if government fails to fulfill its duty to protect nature as it would any person, then, in the same way people can bring lawsuits to protect themselves and the environment, natural living ecosystems, such as Lake Erie, under some type of guardianship can, too.
The recognition of rights of nature or a body of water attracts more and more support worldwide because it is something ordinary people and communities facing serious threats to water from climate change and government indifference can understand and support. It establishes a scaffolding for humans to shift the way we see nature in the first place—a shift from a “property” or physical orientation to one that embraces relationship to a tree, lake, or a river. This is not new for many indigenous people around the world who see nature as not apart, but beings in relation to themselves. But it is new to those more accustomed to seeing everything autonomously, each object bouncing back and forth as separate, unrelated pith balls in a Newtonian world.
Yet while a change like the Lake Erie Bill of Rights calls for more humility and fundamental respect toward nature, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that if government fails to protect nature as a “person” or “natural object,” a person has to step in as an appointed guardian to speak for this new “person.” In most countries, and all of the states or provinces in North America, the only way to do this is for people to march to the state or provincial capitol or file lawsuits on behalf of nature in the courts.
In the 1970s, the states and federal government passed laws giving citizens the legal “standing” to file lawsuits to protect their use and dependence on the environment. The rights of nature movement, if enacted as in New Zealand and attempted for Lake Erie, whether by constitutional amendment or a new law, would grant legal “standing” to the lake, river, forest, or watershed itself. But if this happens, and it should, does it change the fact that citizens, that is human beings, must still insist on that protection by filing lawsuits based on legal standing as they have done since the 1970s?
Toledo’s Lake Erie Bill of Rights clearly created the right, or standing, for citizens to go after the state, but it didn’t establish a remedy. The court ruled the city didn’t have the power to pass a law to protect Lake Erie because it is the state that holds Lake Erie for the benefit of citizens, and only it could pass laws to protect it. Clearly, then, legal standing is not enough.
I suppose a state can pass a new law that grants legal rights to a lake or river, and that because of this, a person could file a lawsuit, perhaps as appointed guardian, in the name of a natural living feature like Lake Erie. And, I suppose, too, that a court would be compelled to grant standing to the lake or river that has been or is threatened with harm, and protect the water and ecosystem that is part of this “person,” as authorized by the new law. Is this different from what people do now? People have been filing lawsuits to protect nature for the last 50 years. But here we are in 2020, facing the cataclysmic demise of the earth and its water—the fading blue planet we’ve seen from outer space during this same 50 years—despite being armed with laws and the right to sue when government and corporations pollute, impair, or destroy anatural systems.
However, this does not mean from a cultural, educational, and advocacy viewpoint, the rights of nature are not important. I think they are. Here’s why.
The Importance of the Rights of Nature and Its Link to the Public Trust Doctrine
First, with the recognition of rights of nature, as noted above, people experience a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, people are more likely to protect that relationship when it is harmed or threatened with harm, and expect the law to recognize it as the status quo of a viable and sustainable being. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement of the violation of the duty to protect or sustain these rights of nature. Perhaps equally important, if not more so, people will become more likely to see nature, ontologically speaking, as beingness. In this way, people can bring civil actions to insist that those new “rights of nature” by a local initiative or law are protected, and the burden is shifted to those who threaten or or alter these rights of nature or being to prove that there is no likely harm to water and nature..
Second, as people search our existing laws, particularly the common law associated with common property of a special character like oceans, rivers, lakes, streams, and their tributary groundwater, they will discover there already exists a legal protection of our relationship to nature as if nature is a being. It’s called the public trust doctrine. The doctrine applies to watersheds and the waters that flow through and define them. Under the public trust doctrine, government has a high, solemn, and perpetual duty to protect these special commons and the public’s use of them from impairment, subordination, or alienation for private control. This trust establishes a legal relationship, just like a trust created with a bank as trustee, among the trustee, beneficiaries, and the commons in nature like water, which establishes a three-way relationship. If the government breaches or fails its duty as trustee to protect the rights or beingness of nature, citizens as legal beneficiaries have a legal right, standing, and claim or civil action against government as trustee to protect both the commons, the natural beingness, and the people and species who depend on it.
Like “rights of nature,” the public trust doctrine calls for respect of the beingness or personhood of nature, and at the same time protects a citizen’s right to bring an action to protect this personhood and the essential protected use of water or ecosystems, such as fishing, drinking water, sustenance, and health.
Citizens have successfully protected water and other special natural commons through numerous public trust cases for more than 100 years. The most visible examples are the beachwalking cases, e.g. National Audubon v Los Angeles Superior Court (“Mono Lake” case), Illinois Central Railroad v Illinois (the Great Lakes are held in public trust), and Glass v Goeckle in Michigan or the Gunderson v Indiana cases (the right of the public to beach access to navigable waters). The children’s trust and other public trust cases, like Juliana v U.S., also seek to address the systemic effects of human behavior, like the diversion of a river, the conversion of a lake to a private industrial complex, or the ruin of a rainforest, and the massive, myriad irreparable harms and disease caused by climate change to the public trust in our waters and the ecosystems, watersheds, and people who depend on them.
Michigan a Forerunner with the MEPA
In Michigan, for example, the Legislature in 1970 established the right of citizens to bring claims against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. (To trace Michigan’s related history, seeThe MEPA Turns 50). So, there is the right, standing, and the claim by statute, and as described above, under the common law of public trust. Because these claims already exist, the declaration of the rights of Lake Erie or nature are an inspiration and aspiration, the public trust doctrine or statutes like the Michigan Environmental Protection Act (“MEPA”) provide the standing, claim, and remedy for damages or court orders to stop the conduct causing or contributing to the harm. The Environmental Law and Policy Center filed suit under the Clean Water Act and forced the U.S. EPA and State of Ohio to declare the open waters and shore waters of Lake Erie “impaired.” As a complement to an often long process to establish enforceable phosphorus limits, known as total maximum daily loads (TMDLs), the public trust doctrine and the MEPA provide immediate claim for impairment of Lake Erie based on these findings that Lake Erie is impaired.
If the connection between the rights and respect toward nature and the public trust in water underlying nature is recognized, and if they are married to each other, viewed as inseparable, then the rights of nature and the public trust doctrine become the umbrella, the backstop, the overarching framework to protect nature and humans as persons or beingness, as a whole. Under public trust law, people and natural beings don’t have to wait for a state or nation to enact a constitutional amendment or new law declaring “rights of nature,” people and nature’s commons don’t have to wait another 4 or 5 years for governments to adopt a phosphorous standard to end the destruction of western Lake Erie. They can bring a lawsuit, and ask the court to protect Lake Erie as a being or body of the trust, and the rights that they enjoy and depend on for drinking water, fish, economy, and sustenance of life.
In short, the rights of nature or rights of Lake Erie are the flags to rally around, and the public trust doctrine is the legal framework and set of principles to halt the undisputed impairment from toxic algal blooms of Lake Erie to protect the rights of nature. People and nature don’t have to suffer the continuing destruction of Lake Erie, they, as persons, have a right and remedy that saves Lake Erie:
It’s time for Mark Ruffalo to produce his next film, a sequel and love story— “The Marriage between the Rights of Nature and the Public Trust Doctrine!”
A draft plan prepared by state government agencies to reduce phosphorus pollution and algae blooms in Michigan-controlled waters of Lake Erie will not deliver on the state’s commitments, FLOW said in comments submitted to the state this month.
Authored by the Department of Environment, Great Lakes and Energy (EGLE) and the Michigan Department of Agriculture and Rural Development (MDARD), the draft Adaptive Management Plan for Lake Erie targets phosphorus released primarily by farms in the form of excess fertilizer and animal waste runoff. It relies too much on programs subsidizing conservation practices by individual farms that have been tried and failed before. The plan also is vague about how the state will refine and recalibrate state actions based on monitoring results.
The waters of western Lake Erie belonging to Michigan, Ohio, and Ontario have been plagued by algae blooms for the last 15 years, interfering with recreation and endangering human health. In 2014, almost 500,000 customers of the public water supply of Toledo and surrounding areas, including thousands in Michigan, whose water is drawn from the lake, were advised not to drink, touch, cook with, or brush their teeth with the water for almost three days because of toxic organisms known as cyanobacteria that resulted from an algae bloom. Worried citizens flocked to stores within a 50-mile radius to stock up on bottled water and the National Guard was called in to assist with bottled water delivery. In the years since, blooms have persisted in the summer months, when sunlight and warm water temperatures interact with phosphorus.
Despite the chronic phosphorus problem, Michigan’s plan, which aims to reduce phosphorus loadings to Lake Erie by a total of 40% from 2014 levels, counts too much on voluntary farm practices instead of enforceable measures. By contrast, Ohio has committed to mandatory measures in the form of a Total Maximum Daily Load (TMDL) process under the Clean Water Act.
“Ohio has recognized it is time for a new, transparent, and more promising approach through the TMDL process. It is regrettable that the State of Michigan fails to recognize this reality,” FLOW wrote in formal comments on the draft plan.
A second shortcoming of the draft plan is that it is more a “plan to plan” than an actual adaptive management plan. It describes how the agencies will work over time to perform such a plan but does not provide a full Lake Erie phosphorus reduction blueprint that can then be updated through the adaptive management process.
The plan does not allocate phosphorus reductions or phosphorus usage within each major watershed specific to biosolids, manure, and fertilizers. It does not assign ratios of phosphorus loadings to Lake Erie to applied phosphorus in biosolids, manure, and fertilizers, nor how those ratios will change as a result of the application of various land management practices.
A third shortcoming is the draft plan’s heavy reliance on the Michigan Agriculture Environmental Assurance Program (MAEAP) to achieve phosphorus-loading reductions from agricultural sources. MAEAP is deeply flawed. It provides a shield against compliance and enforcement of environmental laws by EGLE without sufficient assurance of effort and actual compliance with environmental standards by farm operators. Enrollment in the program is not, and has not proven to be, an indicator of improved environmental performance.
Perhaps the most serious shortcoming of the plan is its failure to respect and follow the legal framework and duties imposed on the State under art. 4, sec. 52 of the Michigan Constitution, the Michigan Environmental Protection Act, and the common law public trust doctrine. The public trust doctrine imposes a solemn and affirmative duty on the state to protect navigable waters, bottomlands, habitat, and fish and to prevent impairment or subordination of the superior public trust rights for fishing, boating, swimming, and sustenance, including drinking water and bathing. In light of the state’s finding that Lake Erie is “impaired,” the failure to recognize and implement an action plan to take actions to immediately prevent or minimize nutrient loading and impairment of these waters, natural resources, and public trust rights constitutes a per se violation of the MEPA and this public trust.
The state has not set a deadline for a final version of the plan, but it is expected to be completed before the end of 2020.
For almost 10 years, the scientific consensus has pinpointed agriculture — both the commercial fertilizer it uses and the vast quantities of animal waste it discharges — as the leading contributor to the problem. Unable to wish the problem away, but unwilling to take serious action, government officials entered into much-heralded pacts like the Western Basin of Lake Erie Collaborative Agreement to combat the algae. The June 2015 agreement called for a 20% reduction in phosphorus loading by 2020 and 40% by 2025. Yet here we are, nearing the end of 2019 with western Lake Erie resembling pea soup. There is no reason to believe next year’s 20% target will be achieved.
It’s been five years since the August 2014 bloom that contaminated Toledo’s water supply for a weekend, leaving half a million people without drinking water — an event that many compared to the 1969 fire on the Cuyahoga River at Cleveland. The fire is said to have outraged America and played a major role in the enactment of the Clean Water Act in 1972.
Where’s the outrage and action now on Lake Erie?
All we have to show for the last five years of “cleanup” for Lake Erie is hundreds of millions, if not billions, of taxpayer dollars spent on agricultural incentives, partnerships, and research. But there is no plan to do anything serious regarding agriculture, in which a transformation is needed if the lake is to be restored. Unconventional ideas may have to be employed, such as reverting parts of Ohio’s Great Black Swamp back to its natural state.
An equally unconventional idea is to treat factory farm pollutants as we treat other industrial sources of pollution — with tough, but fair, regulation and enforcement. But holding agricultural accountable is one of the great taboos in current U.S. politics. The lobby groups that represent agribusiness interests won’t let it happen. Only a strong wave of public opinion can erode that wall, because governments can’t or won’t do so.
In effect, without saying so, our governments are telling us that the price of food and biofuels production is a deeply compromised and impaired Lake Erie.If we want the food grown in its basin, they say, we’ll have to tolerate large algae blooms and the public health, environmental, and economic impacts they cause.
There is a better way.
After years of dragging its feet, the State of Ohio listed the waters of Lake Erie as “impaired” under the definition of the Clean Water Act.That means it goes on a list of water bodies for which a pollution limit is established and reductions in pollution are allocated among various categories of sources.But given the unflinching opposition of the agricultural lobby to change, that process will take many years. The Toledo “bill of rights” for Lake Erie ordinance is a bold attempt to create a legal foothold for citizens and Toledo to force real change, but it remains uncertain whether this will be more than a forceful political statement with the teeth to enforce the necessary phosphorus reductions to restore the lake.
Importantly, the words “impaired” and “impairment” are associated with the public trust doctrine, a centuries-old common law principle that is also the central organizing purpose of FLOW. Among other things, the doctrine holds that governments are trustees of waters like Lake Erie and must protect them from impairment of public uses that include swimming, fishing, and boating. But the state governments whose waters directly feed into Lake Erie are failing this duty. What needs to be understood is that once public trust waters are “impaired,” as with the destruction of Lake Erie from algal blooms, citizens are the legally recognized beneficiaries of this trust, and they have the common law right as to enforce it in the courts.
Five years ago, in a report recommending steep reductions in phosphorus pollution, the International Joint Commission also recommended (at FLOW’s request) that the Lake Erie states use the public trust doctrine as a backstop when statutory laws aren’t doing the job.But it appears the states won’t fulfill their trustee obligations unless the public forces them to.
The only way to compel a cleanup of Lake Erie in our time is for citizens to bring a public trust action in the courts.Lacking such action, we can look forward only to further lost summers in the western basin — a sacrifice zone to unsustainable agriculture.
A lake, river, creek, parkland, wilderness, or canopy of redwoods or old sugar maples can’t walk to the courthouse to file lawsuits to protect their right to be free from harm, nor can they walk into a precinct and vote. Come to think of it, neither can children who will inherit the earth in the shape we leave it. For children, we have a system to appoint guardians who represent their best interests and even go to court when it is necessary to protect them.
As for the lakes and trees, after the first Earth Day in 1970, our legislators passed laws—including the Clean Air Act, Clean Water Act, Endangered Species Act, and Safe Drinking Water Act—to protect the environment. Several states enacted “citizen suit” laws that granted rights to citizens to file lawsuits to protect the air, water, and natural resources. Then, after University of Michigan Professor Joe Sax’s law review article, air, water, wildlife, and public lands of a special character were understood to be held in trust by government for the benefit and basic needs of citizens. It’s called the public trust doctrine. When it comes to navigable waters like Lake Erie, the Great Lakes or any lake or stream, the government must act in the best interests of citizens, the legal beneficiaries of the trust.
Holy Toledo! The Frustration!
So what happened? Why, nearly 50 years after Congress and the states passed a wave of environmental laws, did the residents of Toledo, Ohio have to go to the ballot box to confer rights on Lake Erie?
In a word—frustration!
Anger and indignation at the health threats and the loss of swimming, beach access, fishing, and other recreation drove voters to take action. They were frustrated by the loss of a right each of us has in common and shares with one another. Loss of respect and faith in government leaders in Columbus, Ohio and Washington, D.C.
In short, the government abdicated its sovereign duty—meaning our leaders stopped doing the job the law imposed on them. Today, governments have not only stopped doing what they are supposed to do, they have attacked these laws limiting a citizen’s standing or right to bring a lawsuit to enforce the duties and protect air, water, the common good. The recent rollbacks of our air and water laws and wetlands protection, deliberate indifference to climate change, and the cutting of budgets reject protection of environment, health, and the common good. In Michigan, for example, legislators and the recently departed Snyder administration flagrantly disregarded or twisted the meaning of water and public trust laws to allow bottled water companies to rob headwater creeks of cold water and passed a law to turn over control of the bottomlands under the Straits of Mackinac for 99 years for a crude oil pipeline.
The dead zones of Lake Erie are perhaps the most glaring example of the government and corporate attack on water, environment, and the common good. The people of Toledo, Ohioans, Michiganders, and Great Lakes communities and citizens have witnessed toxic “blooms” of harmful algae smother the western-third of Lake Erie. These harmful algal blooms from farm runoff started to show up a decade ago, and the Ohio government did nothing. Five years ago, a harmful bloom turned most of the west end of Lake Erie into a slimy mat of green, destroying aquatic life, killing fish, poisoning and shutting off the drinking water of 400,000 people, and closing beaches. Despite the annual recurrence of these blooms, no real action by government is in sight.
Well, not exactly no action.
Ohio and the U.S. Environmental Protection Agency (“EPA”) could have declared the lake “impaired” to start the ball rolling toward action that would have set a phosphorous limit to end the blooms, but they refused to do so. It took a lawsuit by the Environmental Law and Policy Center in Chicago to force a showdown. Ohio and EPA quickly blinked, and conceded that the lake was “impaired,” a shameful admission since it had been quite obvious to anyone living on the lake in Toledo or watching a pea-green Lake Erie from satellite photographs. While this was a “victory” of sorts, it has only triggered a regulatory process that could take years, if it succeeds at all.
Is it legal? Maybe. Will it work? Maybe, maybe not. Does that matter? No.
What matters is that in northwestern Ohio, in the year 2019, almost 50 years after Earth Day, citizens from all walks of life and backgrounds have said: Enough! We’re doing it ourselves, and not only for ourselves, but for the things in nature we hold dear, depend on for jobs, health, and life.
Citizens everywhere are taking action against the attack on the common good and the dignity of human beings and our water, air, and community—the vote in Toledo, protests against Amazon’s government-backed subordination of the needs of citizens in New York, and the children’s movement across the globe to stem the deadly future of global warming that threatens to destroy the fabric of their life in less than 30 years.
Toledo is a cry for change, and a harbinger of the coming cultural and political revolution where ordinary people and communities facing climate change and other systemic threats to water, water shutoffs, and lead pipe exposures can rally to break the grip of a government-led plutocracy that puts wealth first and people and their planet last. Toledo is a telltale of not only political change but a shift in the very way we see ourselves and our community, environment, and nature — no longer objects, but living in relationship as part of the common good.
Symbolism, Standing, and Redress
While the vote for Lake Erie’s rights is culturally inspirational, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that only the courts under the common law or people and/or legislatures by constitutional or statutory provisions can declare and grant legal rights in nature, Lake Erie, a river, or trees—first, of standing based on actual, or threat of, harm to a recognized right or interest, and second, of a legal claim that can redress the wrong. A city may do so, by an amendment to a charter, for example, and it may satisfy the first, at least within its boundaries, as to the right threatened and standing, but there are limits outside its own boundaries what it can affect or do.
I suppose a person in the city, once the amendment is adopted, can point to the right and file a lawsuit in the name of the natural living feature, like Lake Erie, and a court may or may not recognize standing of the object, protected by citizens filing suit on its behalf. However, it is doubtful that a cause of action or claim can be created, because that is left to courts and legislatures as noted above. So at best, it may establish standing, at least for the rights of nature, within the municipal boundaries of Toledo. But this does not mean from a cultural, educational, and advocacy viewpoint the rights of nature are not important. I think they are.
Recognizing Rights, and Ourselves, in Nature
Here’s why: With the recognition of rights in nature, people see a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, they are more likely to protect that relationship when it is harmed or threatened with harm. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement where there is a violation of the duty to protect or sustain.
Perhaps equally important, if not more so, people will become more likely to look for ways they can bring civil actions to protect those new “rights in nature” by a local initiative or law or court action.
When citizens do this, they will discover the following: There already exists, in the common law, the public trust doctrine that applies to all navigable waters and arguably all waters and the human activity within a watershed that affect those waters—uses or impacts to land (like nutrient loading from farming) that percolate or runoff into creeks that, in turn, impair or pollute navigable waters like Lake Erie that are subject to the public trust doctrine. Under the public trust doctrine, citizens as legal beneficiaries have a legal right, standing, and right to file lawsuits against government when it fails in its legal duty as trustee to protect these waters and the health of citizens from impairment by private or governmental interests.
The claim exists directly against those who damage the public trust waters and resources and/or interfere with legally protected interests and uses like boating, navigation, fishing, swimming, beach access and walking, and drinking water. There are numerous cases where citizens have protected natural features through public trust cases. The most visible examples are the beach-walking cases and, more recently, the children’s trust cases, like the federal lower court decisions in Juliana v United States: The court recognized the children’s right to proceed to trial on a public trust claim to force the government to reduce greenhouse gases to prevent impairment of their rights to drinking water, sustenance, fishing, and health attributable to climate change.
Michigan, Ohio, and the Public Trust
In Michigan, the legislature in 1970 passed the Michigan Environmental Protection Act (“MEPA”). The MEPA established the right of citizens to bring civil suits against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. The new law created a claim to protect the commons—air, water, and natural resources—similar to the public trust doctrine. Because these claims already exist, the declaration of rights in Lake Erie of nature can be seen as the inspiration for this new cultural shift to restore the common good above private self-interests of a few through citizen-initiated actions.
Now that Lake Erie is officially impaired and the people of Toledo have spoken through their constitutional right of local government initiatives, the people won’t wait, don’t have to wait, for government to eventually get around to putting an end to nutrient runoff. They have the right and means to file lawsuits under the existing public trust doctrine and take other actions to put teeth into the cry and realization that they’ve had enough.
How? The public trust doctrine offers present rights and claims to stop the impairment of Lake Erie, based on their respective and enforceable “non-impairment” standards. Once there is “impairment,” the public trust doctrine has been violated, and citizens have the legal right to bring actions to stop the runoff—against government and those who are causing the algal blooms. Up the coast, in Michigan, citizens who have had enough can bring citizen suits under the MEPA. Now that people have articulated their relationship with the rights of Lake Erie, they can turn to those rights they already have to protect Lake Erie and the nature they know, care about, and depend on.
A Flag to Rally Around
In short, the rights in nature or Lake Erie are a flag to rally around, a symbol of our relationship and respect for natural features and the links to those features and our own health and well-being. The public trust doctrine already provides the standing, claim, and remedy. This means citizens can take action now based on established legal claims and principles, rather than wait for the uncertain and somewhat difficult prospect of turning an important cultural recognition and inspiration by the citizens in and near Ohio on the shores of Lake Erie into action that actually restores and revitalizes Lake Erie.
Jim Olson, President and Founder
It seems that people everywhere are coming to the realization that nature—lakes, rivers, wetlands, trees, prairies, and mountains have a beingness, which means we are moving from perceiving nature as an “object” or “resources” toward seeing them as a relationship or public trust – one in which there is not only a right to protect, but a perpetual duty to do so, meaning we are entering a new era of enforcing rights and duties, and demanding respect for the dignity of nature, community, and ourselves. This is no longer an environmental rights movement. It is the recognition that seeing and saving nature, on which all life depends, is a necessity for all of us.
This week, I had the opportunity to travel to a new place that I knew nothing about, which is one of my favorite things to do. I was honored to be hosted by Ohio Sea Grant for a stay at Gibraltar Island in western Lake Erie. For such a small island, it has a large amount of history, and it left quite an impression on me.
The island is home to Stone Laboratory – the oldest freshwater biological field station in the United States. It also houses former island owner Jay Cooke’s castle and Perry’s Lookout, a lookout point frequently used by Commodore Oliver Hazard Perry, who won the Battle of Lake Erie over 200 years ago. One of the scientists there recommended this as a favorite spot, and I must admit, it was quite a lookout.
The limestone cliffs on the side of the island are even older and more interesting. Their appearance resembles its namesake, the iconic Rock of Gibraltar, and though I could not find any elaborate maze of tunnels running underground, it was still beautiful to behold.
In addition to the beauty of the place, I appreciate what it stands for. The island is owned by Ohio State University. Ohio Sea Grant uses Lake Erie as its classroom and playground, a place where scientists, faculty, staff, and guests can constantly learn and thrive. While there, I went out on Lake Erie to assist with data collection and visited the Aquatic Visitors’ Center on Put-In-Bay island, where I had the chance to hold a captive Lake Erie watersnake (previously endangered) and an Eastern Foxsnake.
Ohio Sea Grant and Stone Lab are dedicated to science, education, and informed policy for the Great Lakes. At FLOW, these are the same principles that we live every day.
Simply being in a physical location that exists for this sole purpose was very inspiring, and I look forward to returning.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned. Rather, these commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
The words “public trust” appear in many news and social media articles these days, and the meanings of the phrase often overlap as they should.
First, for those who follow FLOW’s mission and work or the news about the world water crisis, there is the public trust in our bodies of water, like our lakes and streams, or the groundwater that replenishes them. This is known as the public trust doctrine, an ancient principle in our common law that imposes an affirmative duty on government officials to protect the paramount rights of citizens concerning fishing, aquatic wildlife and habitat, boating, swimming, and access to safe and affordable drinking water. A breach of this public trust duty is legally enforceable when government fails to act or acts in a way that interferes with these rights or impairs these waters and uses. Government cannot sell off the bottomlands and waters of the Great Lakes, for instance, for a purely private purpose or gain. Government can’t authorize a landowner to fill in the bottomlands of a lake for a permanent private deck, because it would exclude the right of the public to the use of the surface of the lake for these protected public trust rights and uses. A private cabin owner can’t fence a stream and block fly fishers from wading and casting for fish. Cities can’t divert a tributary stream that impairs a downstream navigable lake. A federal judge in Oregon recently ruled that the public trust in bodies of water can force the government from dragging its feet to implement the reduction of carbon dioxide in our atmosphere, which contributes to global warming, and extreme weather that interferes with or harms citizens’ right to drinking water, fishing, swimming, and boating.
Second, public trust refers to a public official’s conflict of interest or self-dealing, or breach of governmental office. This most often means an official in her or his official capacity uses that capacity to help approve a business contract for a partner or family member. Or, it might mean an official takes a bribe to vote for a lobbyist’s pet project or to influence an agency to grant a permit for a land development, mall, or perhaps a new urban water infrastructure deal that forces local governments to go along with privatizing the water services system, because the city can’t raise the taxes or collect enough user fees to fix a broken system or find a new water source.
Third, there have been charges of breach of public trust over state and federal agencies’ callous inaction or deliberate indifference toward the health and well-being of citizens– that is, the failure of government to fulfill its duty to promote the common good and public health, safety, and welfare. This could well encompass what happened in the Flint water tragedy, where officials rushing to transfer Flint’s water supply from the established Detroit system to a local water plant that withdrew water from a seriously polluted river. Or, perhaps, it would cover the Detroit water shutoff of tens of thousands of poor home occupants who cannot afford a $200 a month water bill.
All of these charges of breach of public trust have one common denominator: the breach of a legally enforceable duty or ethical expectation and duty to protect the common good in public land, water, health, and the general welfare. Regrettably, with increasing frequency, these breaches of public trust overlap. The water in Detroit is withdrawn from the Detroit River and Lake Huron, both public trust bodies of water. The State forced Detroit to suspend and transfer its power to an emergency manager appointed by the governor to fix the city’s bankruptcy. The emergency manager began getting rid of deadbeat customers by cutting them off from the water services, because they didn’t pay. Within a year, the once highly regarded Detroit regional water system ended up in the hands of a government created Great Lakes Water Authority, controlled by the suburbs, so Detroit could exit bankruptcy. In Flint, inaction or deliberate indifference by state and federal officials failed to prevent continued exposure to lead in the drinking water when another emergency manager, appointed to take charge of the city, hurried the switch to the Flint River. The same inaction has led to the continuing massive algal blooms that have ravaged western Lake Erie. Here, the breach of the traditional public trust duty toward protecting the destruction of fishing, boating, swimming, and recreation in Lake Erie soon led to the exposure of more than 400,000 residents served by Toledo’s public water system, a deliberate refusal to take action against influential corporate farming interests to reduce phosphorus loading from fertilizer runoff exacerbated by extreme weather caused by climate change.
All three of these meanings of public trust point to one thing: more and more, governmental officials are fixated on protecting and promoting profit, gain, and private interests over the common good of the public– whether breach of public trust in our common waters, a breach of a duty and charge to protect the health of citizens or peddling and using influence to ignore doing the right thing in favor of a personal favor.
Jim Olson, President and Founder
Perhaps, upholding the public trust in our water, health, ethics, and the common good is the litmus test for the coming decade for anyone elected or appointed for public office. Ultimately, it is up to citizens to see, claim, and enforce the public trust for the good of all. It might even make for better business, jobs, economy, and quality of life that will be more lasting.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned. Rather, these commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
Last week, the Ohio EPA designated a thousand square miles of toxic green algae that spreads over the western end of Lake Erie in summer months “impaired.” This sudden reversal came after Ohio EPA filed a report under the Clean Water Act (“CWA”) with the U.S. Environmental Protection Agency.
Epiphany? No, that opportunity ended with Lent. So why did Ohio’s EPA and Ohio Governor John Kasich finally come around? A metanoia that allowed them to drop the years of delay on requiring any action by corporate agriculture, allowing them to address phosphorous reduction from runoff and climate change-influenced weather on their own time.
Why did they change their minds? Because nature doesn’t wait. But that’s only part of it: Lake Erie fishing, boating, swimming, beaches and tourism have been severely damaged since the western third of Lake Erie turned into a green mat of algae in the summer of 2011. If that wasn’t enough, in 2014 toxic algae shut down the public drinking water supply of 400,000 people in Toledo, and another 100,000 up the coast all the way to Monroe, Michigan. Now the shadowy green mat of harmful algae is as much an annual event as the corn crop production in the Ohio, Indiana and Michigan river valleys that causes it.
In 2014, the international Joint Commission (“IJC”) urged a 40 percent reduction of phosphorous levels in Lake Erie within four years; states like Ohio picked this target up but gave it lip service by moving the target back to 2025. Nothing has been done to set a target to prevent impairment or destruction from algal blooms. Professor Don Scavia at University of Michigan has warned that prolonged delay in achieving limits will be offset by increased global warming and extreme weather events caused by climate change.
ELPC Lawsuit for Government’s Violation of the Clean Water Act
So, what else caused Ohio EPA to change its mind? The United States EPA and Ohio EPA were about to get slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters” in violation of the federal CWA. The Environmental Law and Policy Center (“ELPC”) out of Chicago and a team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie to reverse the federal government and Ohio’s denial of reality, ELPC’s lawyers recently argued the case before Judge Larry Carr in Toledo. In a move to avoid penalties and embarrassment by an adverse ruling in May, U.S. EPA changed its acceptance of Ohio’s “non-impairment” designation and ordered the state EPA to reconsider. Last week, Governor Kasich announced that Ohio’s EPA has designated the open waters of western Lake Erie as “impaired waters.”
What does this mean? While it is obvious to the naked eye that Lake Erie and its paramount fishery, boating, swimming, tourism, and its source for drinking water have been severely impaired for years, under the CWA “impaired” means that the State in consultation with U.S. EPA and others must set targets for the maximum daily load of phosphorous from farm runoff and to a lesser degree sewage discharges. The targets have to achieve and assure unimpaired waters for recreation and safe drinking water purposes.
While ELPC will see to it that Ohio EPA’s and the feds’ feet will be held to the fire, the CWA process for setting the targets and enforcing them by rule could take years– years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Funding is short, political negotiations with stakeholders takes years, and, frankly, Ohio’s goal of achieving reduced phosphorous levels to prevent reoccurring algal blooms for 2025 is too late. Chesapeake Bay was designated “impaired” decades ago, and the so-called stakeholders are still fighting over a labyrinth of legal complications. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?
It Is Time for a Lawsuit
The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation and sustenance–drinking water—for present and future generations. The United States Supreme Court and every state in the nation recognizes the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interfere with the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs!
So, what are we waiting for? What are Governor Kasich and the Ohio EPA waiting for? The state Supreme Courts of Indiana, Michigan and Ohio–where the phosphorous runoff is occurring– have all recognized and adopted the common law public trust doctrine. The public trust doctrine prohibits foot-dragging like the failure to take swift definitive action against corporate farms and cities that are the combined source of this wholesale destruction of Lake Erie. To be sure, there are stakeholders with interests that must be accommodated and balanced, but not at the expense of the damage caused by the continued blatant violation of the public trust doctrine. The public trust standards are the outer limit, these standards are not discretionary, they are mandatory, they can’t be ignored and they can’t be subordinated. In other words, all of the stakeholders are subject to the non-impairment standard, and all involved are legally obligated to comply with the public trust principles first.
How is this done? It’s straightforward at this point. The ELPC lawsuit or a new lawsuit brought by plaintiffs who are citizens, communities, organizations, property and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by ordering those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie. Two years ago, Michigan declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ – unless of course Michigan wants to join as plaintiff in bringing this claim forward.
Because the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy– the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.
The lawsuit or lawsuits can be filed in the same way any public interest litigation proceeds. The court oversight after the BP Deep Horizon spill worked to minimize the impairment of the Gulf of Mexico. In a major settlement, tobacco companies were forced to pay damages caused to the public health in each state.
There is nothing new here, and in fact a public trust case like this would be both simple and unifying. First, the factual finding is done – there is impairment. Second, this impairment violates the public trust. Third, it is well documented to a strong degree of certainty who and what causes the harmful algal blooms. Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility. If a hearing on the allocation and remedies is needed, then hold it and bring in the experts. There are many in Ohio, Michigan and throughout the Great Lakes region, including the fine scientific universities and groups working on the algal blooms and climate change under the auspices of the Great Lakes Water Quality Agreement and the IJC.
This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one. When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.
Jim Olson, President and Founder
We don’t need a bureaucracy to get around to doing something on its own time through a drawn-out process like the somewhat uncertain establishment of targets and enforcement under the CWA. Why rely only on the CWA and federal and state bureaucracies when a court can take charge, find a violation, set the target, allocate the responsibility, and order actions that reduce phosphorous and stop the destruction of Lake Erie. Ask the legally protected beneficiaries of the public trust doctrine, our citizens and businesses and communities who continue to suffer devastating harm. The time for judicial action and supervision action under the public trust doctrine is now!
Last week, the U.S. EPA acknowledged the serious algae problem sickening western Lake Erie. It withdrew its approval of the State of Ohio’s decision not to declare the western Erie basin to be impaired.
Does that mean the lake will be cleaned up soon? Hardly.
EPA’s determination bounces the ball back to Ohio for reconsideration. If the Ohio EPA changes its mind, western Lake Erie will join the impaired list (where reality has already placed it), and a process to identify all relevant phosphorus sources and decide who must reduce by how much will begin. Years may pass before meaningful reductions are achieved.
This is a shame for one of the world’s largest and most biologically productive lakes. Toxic algae cut off the public water supply of the Toledo area for a weekend in 2014, and large green blobs have plagued the western lake for a dozen years. It shouldn’t take years and years merely to launch a cleanup effort.
There is a better way to get action – the public trust doctrine.
In 2014, the International Joint Commission, which monitors the boundary waters shared by the U.S. and Canada, called for a 46 percent cut in the average annual phosphorus load in Lake Erie’s central and western basins to reduce the hypoxic dead zone, and a 39 percent cut in the average annual phosphorus contributed by the Maumee River to reduce harmful algal blooms.
At the urging of FLOW, the Commission recommended achieving those reductions by applying Public Trust Doctrine legal principles to write and enforce restrictions unattainable using conventional regulation. The Public Trust Doctrine, based on ancient governing and legal principles, establishes the Great Lakes as a “commons,” community assets to be collectively protected and shared.
The Commission called the doctrine a vital tool to update federal and state water pollution statutes, which essentially give cities, industries, and farmers the authority to pour specific amounts of contamination into the lakes. By acknowledging the Great Lakes as a commons, the doctrine could give governments fresh authority to protect waters from any source that would cause harm.
Functionally, the public trust guarantees each person as a member of the public the right to fish, boat, swim, and recreate in Lake Erie, and to enjoy the protection of the water quality and quantity of these waters, free of impairment. The effects of harmful algal blooms – from “dead zones” that suffocate aquatic species, to toxic secretions that close beaches and pose health hazards to boaters, fishers, and swimmers – are clear violations of the public trust. Thus, as sworn guardians of the Great Lakes waters under the public trust, the states have a duty to take reasonable measures to restore the water quality and ensure that the public can fully enjoy their protected water uses.
There are two choices – a seemingly unending process of study and delay using conventional approaches, or strong action by the states, compelled by their citizens, to fulfil their obligations as trustees of Lake Erie. The fate of the lake hangs in the balance.
A great article from the Blade, a Toledo newspaper, was just published which supports the need for a strong “waters of the US” rule under the Clean Water Act. This rule would insure that wetlands and tributary waters of the Great Lakes are not diminished, impaired, and the Great Lakes ecosystem and waters are not damaged. The article reminds us all that we share in the stewardship of the lakes, and that we should all strive to secure a safe and healthy future for our waters. Read more here.
In the spring, the U.S. EPA and Army Corps of Engineers issued a rule to clarify Clean Water Act Protections to wetlands and streams. The rule, also known as the Waters of the United States rule, has not yet been finalized. Since the EPA introduced the rule last spring it has been under attack from many sources, including the Farm Bureau. The rule is needed to clarify the extent of the Clean Water Act, helping to protect small waterways and streams whose protection is currently uncertain.